The time by when employers must make reasonable adjustments for their disabled employees is earlier than you might think

Under the Equality Act 2010, every employer is under a duty to make reasonable adjustments to their workplace to ensure that their disabled employees are not at a disadvantage to their able-bodied colleagues.

Disability could include a wide variety of ailments (including “pre-cancerous conditions” – see our March 2018 article), provided that the employee suffers from a physical or mental impairment, which has a substantial and long term adverse effect on their ability to carry out normal day-to-day activities. According to the Equality Act, a disabled employee can be put at a disadvantage as a result of an employer’s “provision, criterion or practices”, physical features at their premises, or failure to provide an auxiliary aid.

Employers are under a duty to avoid disadvantages caused by any of the above situations and bear the costs of the same, provided it knows, or reasonably ought to know, of its employee’s disability. An employee who is disadvantaged by an employer’s failure to make reasonable adjustments can bring a tribunal claim for discrimination within three months of the “date of the act to which the compliant related”.

When does the employer’s duty arise?

This was the question put to the Court of Appeal in the recent case of Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] EWCA Civ 640. Ms. Morgan suffered from a depressive illness, deemed to be a disability under the Equality Act, and was on long term sick leave from July 2010 until her dismissal in December 2011. Tribunal proceedings began in March 2012 for disability discrimination and unfair dismissal.

At first instance, the tribunal upheld Ms. Morgan’s claim of disability discrimination and found that her employer had failed to make reasonable adjustments. Ms. Morgan was entitled to bring a claim from August 2011 as that was the date when the employer’s duty to make reasonable adjustments began. The tribunal also allowed Ms. Morgan to bring her claim outside of the three month limitation period as it was just and equitable to do so.

The employer appealed this decision on the ground that their occupational health adviser stated that Ms. Morgan was unfit to work in any capacity from August 2011. As such, the employer argued that it was under no duty to make any reasonable adjustments from August 2011 as Ms. Morgan could not work from that time. The Employment Appeal Tribunal dismissed the employer’s appeal, who then appealed to the Court of Appeal arguing that, on finding that the time to bring a claim began from August 2011, there was no breach of duty to make reasonable adjustments for Ms. Morgan as the occupational health adviser had stated that she was too ill to work from that date. In addition, the employer argued that there was no breach of duty before August 2011.

The Court of Appeal was unanimous in dismissing the appeal, finding in Ms. Morgan’s favour. In respect of Ms. Morgan’s reasonable adjustment claim, the Court held that the time by when an employer should comply with its duty to make reasonable adjustments is not the same as when a failure to comply with that duty begins. The duty to make reasonable adjustments begins as soon as an employer is able to take steps to avoid any relevant disadvantage to its employee, and is therefore, dependent on the facts of each matter. In this case, the Court held that, on the evidence, the employer’s duty would have become apparent around June 2011.

What happens if employers do not comply?

If an employer fails to comply with its duty to make reasonable adjustments, it discriminates against its disabled employee, and opens itself to a claim.

Usually, the time limit to bring a claim is three months from the date of the act to which the complaint relates. However, this may be extended where a tribunal considers it just and equitable. In considering whether it is just and equitable to extend time, the tribunal in the above case considered Ms. Morgan’s ill health as well as the fact that she was awaiting the outcome of the employer’s internal grievance process. From the employer’s point of view, the tribunal considered that an extension of time would cause little prejudice as the employer was at fault for Ms. Morgan’s delay in bringing her claim.

Getting in touch

If you need any further advice, please do get in contact. Call Carol Shaw, Director and Head of Employment Law at Spratt Endicott Solicitors on01295 204140 , or email ​cshaw@se-law.co.uk.​

*Disclaimer: While everything has been done to ensure the accuracy of the contents of this article, it is a general guide only. It is not comprehensive and does not constitute legal advice. Specific legal advice should be sought in relation to the particular facts of a given situation.

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